Audible Reality Distribution Agreement

(date of last revision: January 20, 2021)

DEFINITIONS

A PRESET refers to a package (or packages) of programming code existing in the form of a proprietary and encrypted text file for the sole purpose of capturing audio processing settings applied to audio content through the Audible Reality Pro-Plugin. A PRESET may be loaded by Audible Reality products such as the Audible Reality Player app and Audible Reality Pro-Plugin. The settings in a PRESET may include reference to specific audio recordings, however, in the avoidance of any doubt, a PRESET does not, and will not contain audio recordings.

RECITALS

WHEREAS Audible Reality desires to integrate, offer, and distribute a customized Artist Preset created by either Artist or on Artist’s behalf by Audible Reality that contain the ARTIST’S Personal Attributes (“Presets”) and provided content, as described herein.

WHEREAS the ARTIST desires to grant AUDIBLE REALITY the necessary rights to market and sell the Presets with ARTIST’S Attributes and Content, as described herein; and

NOW THEREFORE, in consideration of the mutual promises and agreements set forth below, the parties agree as follows:

AGREEMENT

1. License Grants.

• Type of Preset. The parties agree that Artist (i) may develop Presets (“Artist Developed Presets”) using the Audible Reality Pro-Plugin (hereinafter “Licensed Software”); or (ii) otherwise authorizes Audible Reality develop Presets on Artist’s behalf (“AR Developed Presets”). For the avoidance of doubt, the Artist Developed Presets and AR Developed Presets shall collectively be referred to as “Presets” herein.

• License Grant for Artist Developed Presets. For the purpose of Artist Developed Presets, as applicable, Audible Reality grants a limited, non-exclusive, revocable, nonsublicensable, non-transferable license to the Licensed Software to create the Preset(s) for the Audible Reality Player, as is more fully described in Exhibit A. To the extent Artist utilizes the Licensed Software, Artist agrees to the terms of Exhibit A.

• Distribution Grant for Presets. Artist grants AUDIBLE REALITY a Sublicensable (defined below),worldwide right and license to market, sell and distribute the Presets pursuant to this Agreement through the Audible Reality Player’s Preset Store (“AR Store”).

• Use of Artist Name, Likeness, and other Content. Subject to the terms of this Agreement, the ARTIST hereby grants to AUDIBLE REALITY a Sublicensable (defined below), worldwide right and license to use ARTIST’s names, images, likenesses, appearances, trademarks (including logos), content provided by ARTIST (including but not limited to musical works) and personal and professional biographical information (the “Artist Attributes and Content”) in connection with the creation, marketing, promotion, sale, and distribution of the Presets. Artist agrees that Audible Reality may market that ARTIST endorses the Presets.

• “Sublicensable” means that AUDIBLE REALITY shall have a right to sublicense the rights in the Presets to its authorized third party streaming service partners and end-users.

2. Product Development.

• In the event AUDIBLE REALITY develops the AR Developed Presets on behalf of Artist, AUDIBLE REALITY shall be responsible for all software programming, sound design and product development to create and develop the Presets under this Agreement, but ARTIST agrees to provide assistance as may be reasonably requested in connection with such development activities. AUDIBLE REALITY will consult with the ARTIST in review of the Presets developed by Audible Reality and the ARTIST shall provide feedback as reasonably requested by AUDIBLE REALITY.

• In the case of all Preset types, the Parties shall work together in good faith to agree on the (i) finalized version of the sound processing effect for the Presets; (ii) final artwork for the Preset; (iii) the final position of the Preset within the Preset Store; (iv) the final title and description of the Preset, provided that the title shall be the Artist’s name and the description shall not exceed fifty characters; and (v) the final release schedule. Notwithstanding the foregoing, AUDIBLE REALITY shall have final discretion over the final Preset product details and release schedule.

3. Promotion.

The parties shall work together in good faith in developing social media and marketing materials for the promotion of the Presets, provided that Audible Reality shall have final discretion over marketing materials. Artist agrees to provide Audible Reality with necessary content for such marketing, such as pictures, logos, and testimonials, as is reasonably requested by Audible Reality.

4. Ownership.

• Subject to the licenses granted in this Agreement, the Parties understand, acknowledge and agree that the ARTIST shall retain all right, title and interest in and to the Artist Attributes and Content.

• The Parties understand, acknowledge and agree that AUDIBLE REALITY shall own all right, title and interest in and to all Presets including but not limited to all copyrights, patents, trademarks, trade secrets, trade dress, algorithms, and sound mark rights and will execute any documents necessary to perfect such assignment of rights to AUDIBLE REALITY.

• The Parties may add additional Presets to this Agreement via an addendum, signed by both Parties.

5. Compensation.

• Royalty. As consideration for the licenses and rights granted under this Agreement, AUDIBLE REALITY shall pay to ARTIST a Royalty of 50% of the Net Revenue. “Net Revenue” shall mean all revenue received by AUDIBLE REALITY for the Presets containing the Personal Attributes and Content as reduced by credit card fees, PayPal fees and equivalent payment service transaction fees, returns and sales discounts, including promotions, sales tax and other provable governmental or third party fees related to the sale of Presets.

• MSRP. AUDIBLE REALITY’s suggested retail price is one U.S. dollar and ninety- nine U.S. cents ($1.99), but AUDIBLE REALITY has final discretion over pricing.

• Timing of Royalty Payments. AUDIBLE REALITY shall make royalty payments to ARTIST on a quarterly basis (i.e., January-March, April-June, July-September, October-December) and payment shall be made 30 days following the end of each quarter. All payments made by AUDIBLE REALITY to the ARTIST under this Agreement shall be made payable to ARTIST or alternatively, ARTIST may designate a bank and account number into which a transfer of funds may be made by AUDIBLE REALITY.

• Payment Processing; Stripe. Payment processing services are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to these terms or continuing to operate as on AUDIBLE REALITY’s service, ARTIST agrees to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of AUDIBLE REALITY enabling payment processing services through Stripe, ARTIST agrees to provide AUDIBLE REALITY accurate and complete information about ARTIST and ARTIST’s business (if applicable), and ARTIST authorizes AUDIBLE REALITY to share it and transaction information related to ARTIST’s use of the payment processing services provided by Stripe.

• Royalty Statements. With each payment, AUDIBLE REALITY shall provide a written royalty statement setting out how the royalty payment contemplated by Section 4(a) was calculated.

6. Representations and Warranties.

• REPRESENTATIONS AND WARRANTIES OF EACH PARTY. Each Party represents and warrants to the other Party that: (i) such Party has the full individual or corporate (as applicable) right, power and authority to enter into this Agreement and to perform the acts required of it hereunder, (ii) when executed and delivered by such Party, this Agreement will constitute a legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.

• ARTIST’S REPRESENTATIONS AND WARRANTIES. The ARTIST represents and warrants: (i) there are no contractual commitments or otherwise that preclude the ARTIST from entering into this Agreement; (ii) ARTIST owns all rights in and to the Artist Attributes and Content licensed hereunder and any other content provided to Audible Reality under this Agreement and has the authority to grant the licenses provided to AUDIBLE REALITY under this Agreement; and (iii) such Artist Attributes and Content do not infringe on third party intellectual property and other proprietary rights, including but not limited to trademark, copyright, patent and rights of publicity.

• AUDIBLE REALITY REPRESENTATIONS AND WARRANTIES. AUDIBLE REALITY represents and warrants that there are no contractual commitments or otherwise that preclude AUDIBLE REALITY from entering into this Agreement.

• NO WARRANTY. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NO PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES AND HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, EFFECT ON BUSINESS, PROFITABILITY AND/OR SALES OF THE LICENSED PRESETS, THIRD PARTY CONTENT TIMELINESS, NON-INTERRUPTION,INTEGRATION, NON INFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE.

• Indemnity. Each party shall indemnify, defend and hold the other party harmless from any and all third party claims, losses, damages, liabilities, costs, and fees (including reasonable attorneys’ fees) arising from breach of the representations and warranties in this Agreement. Such right of indemnity shall be conditioned on prompt notice and the opportunity for the indemnifying party to control the defense, provided that the indemnified party may participate in the defense in its sole discretion, at its cost. The indemnifying party shall not settle without the prior written consent of the indemnified party unless such settlement fully releases the indemnified party of all liabilities.

7. Term.

This Agreement shall become effective upon the Effective Date and shall remain in effect for an initial period of 3years (“Initial Term”), and shall automatically renew for 2-year periods (“Renewal Term”) unless either party gives 60-days’ written notice of non-renewal before the end of the then applicable Term, in which case the Agreement shall end at the end of the then applicable Term. Either party may terminate this Agreement for an uncured material breach, provided that the party first provide a 30-day written notice and opportunity to cure to the other party.

8. Survival.

The following provisions shall survive any discontinuation of the Agreement: Sections 4, 9 and 10 and any other section that by its nature survives termination.

9. CONFIDENTIALITY.

The ARTIST and AUDIBLE REALITY understand and acknowledge that each Party may come into contact with information of substantial value to any other Party which is not generally known in the trade and which gives such other Party an advantage over its competitors who do not know or use such information, or disclosure of which will or may be detrimental to such other Party, including, without limitation: (a) any of the terms and conditions of this Agreement; and (b) any information pertaining to sales, Presets, pricing, customers, financial, management, research/development, software code, technology or other information relating to the business of such other Party(collectively, the “Confidential Information”). Each Party shall, at all times, regard and preserve as confidential the Confidential Information, regardless of its source, and shall not, during the term of this Agreement or thereafter, publish or disclose any part of the Confidential Information in any manner or use, without the prior written consent of the other Party; provided, however, that any Party may disclose Confidential Information if, and only to the extent, required by any judicial or governmental request, requirement or order, or if necessary to establish the rights of such Party under this Agreement. Each Party shall also refrain from any acts or omissions which would reduce the value of the Confidential Information to the other Party. Upon any termination of this Agreement and if requested, each Party shall promptly return to the other Party all Confidential Information pertaining to the other Party. The rights and obligations of the parties under this section9 shall survive termination of this Agreement and remain in effect until three (3) years after the date of disclosure of the Confidential Information; provided that with respect to Confidential Information that constitutes a trade secret under the laws of any jurisdiction, including without limitation algorithms, software code and other technical information, such rights and obligations will survive indefinitely until, if ever, such Confidential Information loses its trade secret protection other than due to an act or omission of the receiving party. The Parties’ obligations under this Section 9 with respect to any of the Confidential Information shall not apply to information which (as evidenced by written records): (i) entered the public domain through no fault of the receiving Party; (ii) was in the receiving Party’s possession free of an obligation of confidence at the time it was communicated to the receiving Party by the other Party; (iii) was rightfully communicated to the receiving Party free of any obligation of confidence subsequent to the time it was communicated to the receiving Party by the other Party; (v) was developed by employees or agents of the receiving Party independently of and without reference to any information communicated to the receiving Party by the other Party.

10. Miscellaneous.

• Relationship of the Parties. Nothing contained in this Agreement shall be intended or construed to create a relationship of principal and agent, employer and employee, franchisor and franchisee, partnership or joint venture between the ARTIST and AUDIBLE REALITY.

• Governing Law. This Agreement and all related disputes shall be governed by, construed, and enforced in accordance with the laws of New York without reference to conflict of law principles.

• Arbitration. Any dispute, controversy or claim arising out of or relating to this Agreement shall be decided by arbitration in New York City, New York in accordance with the rules of the American Arbitration Association (the “Association”) then in effect. Any award rendered by the Association shall be final, binding and not subject to appeal and maybe enforced by any court of competent jurisdiction.

• Attorneys’ Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and costs.

• Amendment. This Agreement may be amended or modified only by a written agreement executed by each of the Parties.

• Assignment. This Agreement (together with any right or obligations hereunder) may not be assigned by the ARTIST without the prior written consent of AUDIBLE REALITY.

• Integration and Severability. This Agreement, including the License in Exhibit A, represents the entire understanding of the Parties with reference to the transactions set forth herein. By entering into this Agreement, no Party is relying upon any past statements or representations by any other Party. If any provision of this Agreement or the application thereof shall be determined by a court of competent jurisdiction to be invalid and unenforceable, the remainder of this Agreement and the application of the other provisions herein contained shall not be affected thereby, and all such other provisions shall remain effective and in force and shall be enforced to the fullest extent permitted by law.

• Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed to be an original and which together shall constitute one instrument.

EXHIBIT A (Limited License)

The Parties agree that this limited license (“License”) shall apply in case of Artist’s use of the Licensed Software in connection with the Artist Developed Presets as is described in the main Agreement. 

1. License Grant.

Audible Reality grants Artist a limited, non-exclusive, revocable, nonsublicensable, non-transferable license solely to download, install, and use the Audible Reality Pro Plug-in (hereinafter “Licensed Software”) with the intended purpose to create Artist Preset(s) for the Audible Reality Player (“Intended Purpose”).

2. User Restrictions.

Except as expressly permitted in this License, Artist agrees that Artist will not, in whole or in part, at any time during or after the term of this License: (a) sell, assign, sublicense, lease, rent, timeshare, grant a security interest in, or otherwise transfer the Licensed Software; (b) copy or reproduce the Licensed Software; (c) provide access to or distribute the Licensed Software to any other third party; (d) modify, translate, adapt, reverse engineer, decompile, disassemble or otherwise attempt to discover any source code for, or create derivative works based on, the Licensed Software; or (e) attempt to modify, circumvent or disable any security or restrictive feature in the Licensed Software; (f) use the Licensed Software for any unlawful purpose; (g) allow any third party to do any of the acts described in this Section 2; or (h) use the Licensed Software for a third party platform, i.e. for a platform that is not operated by Audible Reality, or other than the Intended Purpose.

3. Term; Termination.

This License will commence as of the Effective Date until terminated as described herein. Audible Reality reserves the right to cancel, discontinue, amend, or modify the Licensed Software and terminate this License at any time. Upon termination of this License or/and upon request by Audible Reality, Artist will take appropriate steps to satisfy Audible Reality that Artist no longer has access or is using the Licensed Software. All sections of this License which by their nature should survive termination will survive termination, including, without limitation, confidentiality and data security obligations, warranty disclaimers, indemnification obligations, and limitations of liability. 

4. Confidentiality.

For the avoidance of doubt, the Parties agree that information disclosed by the Parties under this License shall be governed by Section 9 (“Confidentiality”) of the main Agreement.

5. Ownership.

Artist agrees and acknowledges that, as between Artist and Audible Reality, Audible Reality owns and retains all right, title, and interest in and to (a) the Licensed Software, and all improvements, enhancements, or modifications thereto, and (b) all intellectual property rights related to any of the foregoing. No rights or licenses are granted except as expressly set forth herein.

6. WARRANTY DISCLAIMER.

THE LICENSED SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, AUDIBLE REALITY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE LICENSED SOFTWARE, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RESULTS OF USE, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AVAILABILITY, PERFORMANCE, BANDWIDTH, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. FURTHER, AUDIBLE REALITY DISCLAIMS ANY WARRANTY THAT ARTIST’S USE OF THE LICENSED SOFTWARE WILL BE AVAILABLE, UNINTERRUPTED OR ERROR FREE.

7. LIMITATION OF LIABILITY.

TO THE FULLEST EXTENT PERMITTED BY LAW, REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL AUDIBLE REALITY OR AUDIBLE REALITY’S CONTRACTORS, EMPLOYEES, OR AFFILIATES BE LIABLE TO ARTIST OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INFRINGEMENT, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE LICENSED SOFTWARE, EVEN IF AUDIBLE REALITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE.  IN NO EVENT SHALL AUDIBLE REALITY’S TOTAL LIABILITY TO ARTIST OR ANY THIRD PARTY EXCEED TEN U.S DOLLARS. ANY CLAIM ARTIST MAY HAVE ARISING OUT OF OR RELATING TO THIS LICENSE MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM.

8. INDEMNITY.

Artist agrees that Audible Reality shall have no liability whatsoever for Artist’s use of the Licensed Software. Artist shall indemnify, defend and hold Audible Reality harmless from any and all claims, losses, damages, liabilities, costs, and fees (including reasonable attorneys’ fees) arising from Artist’s use of the Licensed Software or any breach of this License.

9. Remedies.

Artist agrees that it would be impossible or inadequate to measure and calculate Audible Reality’s damages from any infringement by Artist’s or Audible Reality’s intellectual property, including without limitation breach of Section 2 of this License. Accordingly, Artist agrees that to the extent Audible Reality is required to enforce this License to protect its intellectual property, Audible Reality will have available, in addition to any other right or remedy available, the right to obtain from any court of competent jurisdiction an injunction restraining such breach or threatened breach and specific performance of any such provision. Artist further agrees that no bond or other security shall be required in obtaining such equitable relief and Artist hereby consents to the issuance of such injunction and to the ordering of such specific performance.

10. Prevailing Party.

Notwithstanding Section 7 (“Limitation of Liability”), in the event of any court action relating to enforcement of this License, including injunctive relief, the non-prevailing party shall reimburse the prevailing party for all reasonable attorneys’ fees and costs, including expert witness fees, resulting therefrom.

11. Conflict.

This License shall govern over the Artist’s use of the Licensed Software in connection with its rights and obligations in the Agreement. In the event of a conflict between the Agreement and this License, this License shall govern.